Legislature(1995 - 1996)
04/09/1996 03:10 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSSB 91(HES) - CRIMINAL TRANSMISSION OF HIV Number 881 CO-CHAIR TOOHEY said the committee would be taking testimony only and would not be moving CSSB 91(HES) out of committee at this meeting. Number 929 SENATOR ROBIN TAYLOR, Sponsor, said Senate Bill 91 was introduced because of an article, which he had provided committee members with a copy, relating to one of the more winning race car drivers on the Nascar circuit named Richmond. He earned $2.3 million and won 13 Winston Cup races. He also was infected with AIDS, never bothered to notify his sexual partners and it is estimated he's probably going to kill 30 women. He already died. The picture in the article is that of a beautiful woman who has graced the covers of Glamour, Seventeen and Cosmopolitan magazines. Her doctor is quoted as saying, "She suffers today from temporal wasting"; in other words her skull is caving in as a complication of the AIDS. He referred to another article about a heterosexual woman infected with AIDS who said, "I feel if I have to die of a horrible disease, I won't be going alone." This woman lives in the Dallas area where she frequents bars and attempts to infect as many man as she can. He added that Dallas is rated number 12 nationally for AIDS; they have over 3,200 recorded cases in their community. Another reason he introduced this legislation is because of an individual named Governor Jim Edgar, current Governor of Illinois, who wanted to be kind and considerate. He explained that a woman had been convicted and sentenced to three years in prison because after being diagnosed with AIDS, she intentionally attempted to infect other people with the disease by having unprotected sex. Governor Edgar, who wanted to be a nice person, commuted her sentence. Three weeks after her sentence was commuted, "Tracy Eichman, 34, was arrested by Rockford police on Tuesday after offering to perform sexual acts for a police officer for $20, authorities said. She was being held in the Winnebago County Jail on $25,000 bond. She faces one to three years in prison if convicted on the new charges. In February 1991, Eichman was sentenced to 3 years in prison after being convicted." Governor Edgar commuted her sentence so she could get back out on the street and infect more people. Senator Taylor referred to an article about a heterosexual male, William Barker, who had tested positive for the AIDS virus and threatened to take all the women with him that he could before he dies. He quoted from the article, "Barker was arrested April 9 after a parole officer received a tip that Barker was deliberately trying to infect women with AIDS, Stewart said. Police found Barker and the women in a motel room. She became hysterical when officers told her Barker had AIDS." Senator Taylor added that any one of us would probably become hysterical to find out such information after the fact. SENATOR TAYLOR directed the committee's attention to the article about a homosexual who knowing that he was diagnosed with AIDS had a sexual relationship with a 17-year-old boy. He noted that the United States military doesn't handle it quite the same way as Governor Edgar, and instead dishonorably court martialed him and he is serving 10 years. His crime is, "He was likely to transmit HIV. The crime of transmitting HIV or being likely to transmit and engaging in such acts that would transmit it in Texas is a felony." SENATOR TAYLOR said this issue was brought to his attention by a friend, John Walsh, of America's Most Wanted television show. Before Mr. Walsh started his television program, he came to Alaska and worked with many individuals to bring about changes concerning lost and sexually abused children and background checks for people who deal with children. On one of Mr. Walsh's programs, he asked the public to call in if they knew of a heterosexual man from Georgia who was estimated to have infected at least 30 women. They believed he could be hiding out in any one of the states that did not have a law against this type of conduct. A map was displayed on the television screen and to Senator Taylor's chagrin, Alaska was one of those states which attracts people like that. The most risk an individual would run is being prosecuted for reckless endangerment, which is a misdemeanor and carries a maximum of one year in jail. He informed the committee that CSSB 91(HES) passed overwhelming in the Senate. SENATOR TAYLOR said that Illinois' law was taken to the state Supreme Court to find out if it was constitutional. He noted the legislation before the committee was taken directly off the Illinois legislation. The case was upheld by the Illinois Supreme Court and at the time it was upheld, there were two cases pending. In one case a woman was charged with knowingly spreading the virus when she had sex without telling her partner. In the second case a man was charged with raping a woman when he knew he was infected with the virus. Senator Taylor said he couldn't understand why anyone would want to protect and make life more comfortable for a person that fails to inform their sexual partners they are infected with this virus and knowing full well they could be transmitting not a disease, but a death sentence. He said he didn't understand it and would like to be informed of what the reasons are because he certainly hopes they are sufficient that if in fact there are people in Alaska currently (latest indications are there are over 500 who are currently infected) if there is only one or two individuals who are being so cavalier or who are so filled with anger and rage over contracting this disease, do we really want to risk that? Will it have a "chilling" effect on people coming forward to being examined? The response is no. Illinois prosecuted only three people, but at least those three were prosecuted and he would be willing to bet that Governor Edgar was not going to turn any more of them loose. In fact, Governor Edgar is quoted as saying, "In the future, if he has a clemency request from a person like that, he wants to do a much more careful examination of whether or not they are going to survive if the are turned loose." SENATOR TAYLOR commented that Miami had the very same problem several years ago and Florida passed similar legislation. A trial judge in Miami had a lady who was a prostitute before him for the third time and was in the final stages of AIDS. The judge knew she was in that condition when she was released the two previous times, but the third time the judge locked her up because she was trying to kill people. He commented the social libertarians however thought she was being denied her freedom and added for some reason there seems to be a bizarre schizophrenic twist in American society today. SENATOR TAYLOR informed the committee of an incident involving a local sandwich shop who had an employee with hepatitis. The shop was closed down and every employee was tested to find out who had the disease, who was spreading it and why. That's not even being done with the AIDS virus. He remarked that hepatitis kills; his brother-in-law died because of hepatitis. He asked what was being done in the world today about typhus, and where is "Typhoid Mary"? Do we allow her to work in the school kitchens? No, she is charged with a crime if she does that. Does it prevent people from being tested for typhus? No, in fact barriers have been established to ensure that people who work in those facilities are tested for that disease. He asked how comfortable do you feel getting on an airplane knowing what is happening with tuberculosis today? Does it keep people from getting tested for TB? The answer is no. Do we as responsible citizens take actions that will hopefully prevent that from ever being transmitted to another person? He thought people did. SENATOR TAYLOR said criminal activity is just another form of irresponsible activity. He questioned if that was any more irresponsible than Mr. Richmond, the wealthy, playboy, race car driver who wants to infect women all over the country and decides he's not going to tell anyone. Four of the infected women have already died, and there are estimates of another 30 waiting. He wondered how anyone would explain to any of the family members that he was a super hero and shouldn't have been charged with any criminal activity. On the other hand if he had been charged, it probably would have been on national news and had a deterring effect on other individuals from trying the same irresponsible, deadly act. He encouraged committee members to pass CSSB 91(HES) from committee. CO-CHAIR TOOHEY asked if there were any questions of Senator Taylor. Number 1583 REPRESENTATIVE ROKEBERG asked Senator Taylor to explain the concept of intent in criminal law. SENATOR TAYLOR said there was a legal opinion from the Attorney General's Office in the packet, stating that intent would be required. In this instance, the intent that is required is within the bill. It's a general intent crime, that a person merely intends to do this act. It has to be done knowingly, and the only way to get to knowingly is the person has to be knowingly diagnosed as having AIDS. Once that diagnosis has been made, if a person participates in a sexual act with another consenting adult, they must inform the other adult of the AIDS diagnosis and give that other person the opportunity to know and to take additional precautions or not participate in that act. REPRESENTATIVE ROKEBERG asked about the defense of wearing a prophylactic in that case? SENATOR TAYLOR replied this has nothing to do with wearing a prophylactic, but merely notifying the sexual partner. That is the only act that is required by this legislation. REPRESENTATIVE ROKEBERG asked what would happen if the individual with HIV took a preventive measure, but did not inform the sexual partner? SENATOR TAYLOR responded the person would be guilty if he/she did not inform the partner. He emphasized that if an individual knew they had AIDS, did not inform their sexual partner and went forward with an act likely to transmit would be guilty. REPRESENTATIVE ROKEBERG thought there would be a problem with criminal intent under criminal construction if there was no intent to transmit by wearing a prophylactic. SENATOR TAYLOR remarked that an individual cannot avoid it by doing that. He added that if an individual with HIV has informed their sexual partner of the virus, it doesn't matter if the individual is wearing a prophylactic or not because the knowledge has been communicated to the person who may be the victim, and that person then has the consensual right to risk that activity if they wish to do so. He emphasized the important thing is that the potential victim know and have the opportunity to make a rational decision. CO-CHAIR TOOHEY asked if there were other questions of Senator Taylor? Hearing none, she invited testimony from individuals via teleconference. Number 1784 BARBARA BRINK, Attorney, Alaska Public Defender Agency, testified from Anchorage that unlike Senator Taylor, she believes that Alaska law already covers this type of behavior. She said Senator Taylor had questioned why the state would want to protect a person who is engaging in this risky behavior to which she responded, Alaska does not protect this person; Alaska punishes this person and punishes the person severely. She did not understand at the beginning the impetus for this legislation, because if the legislature wants to prosecute someone who is deliberately and recklessly setting about to infect someone with the virus, Alaska laws already exist that provide a range of prosecutorial charges and punishment to cover every set of conduct mentioned by Senator Taylor. She disagreed with the analysis that the only thing a person could be charged with is reckless endangerment. The assault statutes in the state of Alaska were constructed as a whole to deal with any situation where violence is perpetrated upon a person, and as a whole they cover every situation where an act or acts intentionally, recklessly or even just carelessly in causing harm to another person. The assault statutes also prosecute differently, depending on the actual seriousness of the harm caused. She said the behavior described by Senator Taylor could be prosecuted as attempted murder, assault in the first degree, assault in the second degree and all the way down to reckless endangerment depending upon the actual harm caused. Alaskans are protected from this type of behavior and this legislation is unnecessary in order to prosecute someone who infects the virus deliberately, recklessly or knowingly. MS. BRINK further stated in contrast, drafting a piece of legislation to cover a particular crime has raised a host of problems. She said, "it makes this a Class B felony offense for a person who has tested positive for the HIV virus, and I want to distinguish that from someone who is diagnosed with AIDS - those are two different things. A person who is (indisc.) positive for the HIV virus may engage in sexual activity with someone and be prosecuted and charged with this crime, even though they never develop the AIDS virus and the person they've engaged in conduct with never actually develops the virus." To have this thrown in the middle of the assault statutes is out of whack proportionally with the danger and with the harm. She pointed out there is epidemiological evidence that the risk of transmission of the HIV from a single incident is only 1 in 1,000. She said that Representative Rokeberg had raised a good question about when a person wears a prophylactic or a condom and under those circumstances, the chance of transmission is about 1 in 10,000. This legislation would make this a Class B felony with a 10-year sentence when there is little danger and little harm. By creating a special class of people she was concerned that this bill, if enacted, would violate the equal protection. She said we have taken a single class of people, those persons infected with HIV, and set about criminalizing their conduct. What about people who knowingly infect others with syphilis, gonorrhea, herpes or as Senator Taylor mentioned, tuberculosis or hepatitis - why isn't that behavior being criminalized? To single out this class of persons is not rationally related to protection to the health of the public. Additionally, it is over broad and interferes with Alaskans' right to privacy. The sexual behavior of an entire class of people is being damned when it is not necessary and not productive. MS. BRINK remarked she has real and demonstrable concerns that this will accomplish just the opposite of what Senator Taylor wants to accomplish. Everyone wants to slow down the spread of HIV and protect people. Public education regarding transmission of the HIV virus to enable people to voluntarily modify their behavior is far more cost effective than punishing it after the fact. If people are told we want them to get tested but they cannot engage in intimate sexual conduct if they test positive, will have a negative effect on the number of people getting tested. This legislation would have a definite impact of deterring people. Therefore, rather than reducing the risk of the spread of HIV, she believes this legislation will increase it. Increasing public education and removing restrictions on the availability of sterilized, disposable hypodermic needles and encouraging hygienic HIV practices would be far more cost effective in stopping the spread of HIV than this bill. TAPE 96-38, SIDE A Number 001 REPRESENTATIVE ROKEBERG asked if Ms. Brink was suggesting that incarceration is not a deterrent to criminal activity? MS. BRINK replied no, she never suggested that. REPRESENTATIVE ROKEBERG said he asked the question because he thought that's what she had said. MS. BRINK said when she had spoken of deterrents, she believed that criminalizing the conduct of whether or not a person knows they are HIV positive would deter people from getting tested. CO-CHAIR TOOHEY asked if there were further questions of Ms. Brink. Hearing none, she asked Amy Eilertsen to present her testimony. Number 064 AMY EILERTSEN, Director, Stop AIDS Project, testified from Anchorage. As a former student of Representative Bunde's at UAA, she urged him to pay special attention to the repercussions of CSSB 91(HES). She commented that as a registered nurse directing the safer techniques of a prevention project, her goal is to reduce the spread of HIV in the injectable drug users in Anchorage. She said in a high risk population such as this, denial and fear of knowing one's HIV status is a big barrier to HIV testing. The important and indispensable part of HIV testing protocol is the risk reduction counseling that people receive. This counseling informs people on how not to get (indisc.) spread HIV and other sexually transmitted diseases. She believed this bill would reduce the number of people being tested for HIV. People would not only be afraid to know their status because of the shock and social stigma surrounding HIV, but people would be terrified of the legal repercussions regarding being tested and perhaps finding out they have HIV. Not being tested would mean not receiving this life- saving personalized risk reduction counseling. Without this counseling, those who do not have HIV would probably be at greater risk for getting HIV. In the state of Alaska, there have been approximately 87,000 tests going through the state laboratory of which 560 have come up positive as of December 31, 1995. MS. EILERTSEN said according to the Center for Disease Control and prevention statistics, 9 out of 10 people who have HIV are not being tested for HIV. She commented, "So Senator Taylor, we can say that between 3,000 and 5,000 residents of the state of Alaska have HIV; 560 of these have been counseled on how not to give HIV to people, the other 1,000 have not." She believes the solution is further education. She reiterated her belief that this legislation would reduce the number of people being HIV tested and would probably increase the spread of HIV. She called the committee's attention to page 1, line 12, which indicates that a woman who knowingly passes HIV to her fetus purposefully will not be prosecuted, and yet a person who has HIV can have sex with someone who does not have HIV transmitted to them and be prosecuted under this bill. She thanked the committee for giving her the opportunity to testify. Number 320 SENATOR TAYLOR asked Ms. Eilertsen if all the people she counsels follow her directions and to the best of her knowledge have all those people informed their sexual partners? Or does she have people she is counseling who continue to have an active sex life without informing any of their sexual partners? MS. EILERTSEN asked what would they be informed their sexual partners of? SENATOR TAYLOR responded informing them of the fact they have been diagnosed. MS. EILERTSEN interjected the people she has been counseling have not necessarily been diagnosed or tested positive for HIV. She maintained that was her point - if people come in to be tested, they may come up negative and this is an opportunity to coach people on how to stay negative. If people don't come in to be tested because they are afraid of being criminally prosecuted, the opportunity for individualized education does not exist. SENATOR TAYLOR reiterated his question that of those people Ms. Eilertsen knows to have tested positive and infected with AIDS that she is counseling, are they restricting their sexual activity or does she in fact have people who are sexually active and not telling their sexual partners they have been diagnosed? MS. EILERTSEN apologized for not quite understanding the question in that people who have tested positive for HIV don't necessarily (indisc.), so she doesn't know about people with AIDS. SENATOR TAYLOR thought she was in charge of a center that had something to do with AIDS. MS. EILERTSEN said the center counsels people on how not to get HIV. Number 447 JOHN MIDDAUGH, MD., Chief, Epidemiology Section, Division of Public Health, Department of Health & Social Services, testified that he has been responsible for overseeing the development of the AIDS policies and enhancing the prevention efforts since 1982, when the first person was diagnosed in Alaska with AIDS. He appreciated the very grave concerns that have been reflected in the submission of Senator Taylor's bill and he believed that everyone shared the goal in an abhorrence of the idea that a person would knowingly and intentionally attempt to infect other individuals with a disease, regardless of what that disease is. He believed that current statutes and policies exist in the state to take care of the instances when it is able to be shown that that intention exists. He said the department, division, AIDS program and AIDS task force oppose this legislation and it's difficult to sort out some of the issues in this very powerful and important area about why that is. DR. MIDDAUGH said this legislation adds two major new components to the existing statutes and procedures. One is it removes the issue of intention and it does not take into account whether transmission of HIV does or does not occur. It also fails to include any scientific information about the likelihood or infectiousness of an individual attempting to infect another. Now, that's not the (indisc.-paper shuffling) support anything, it's simply to say that we know that during the period of infectivity with HIV, that at some times individuals are not infectious at all. Late in the course of illness when AIDS occurs, then it's been able to be shown that the virus is more present and the person is presumably more infectious. However, none of this information is reflected in the proposed legislation. He said what we are doing then is criminalizing an infectious agent in the absence of disease or potentially in the absence of a degree of infectiousness to another person. As the committee had heard, that analogy then occurs in that we have a registry of 1400 Alaskans who are hepatitis B surface antigen carriers. The risk of transmission of hepatitis B through sexual contact is far greater than HIV, perhaps as much as 10,000 to 100,000 times greater. Dr. Middaugh said we have an ability today to diagnose and fingerprint many kinds of viruses and infectious agents. Would we propose that we would criminalize the behavior of a mother who dropped her child at a daycare center with a fever, conjunctivitis, or a little rash and then learned the child had measles and had infected another child at the daycare center. The history of public health is that the ability to prevent infections generally requires the enrollment of individuals in a manner to prevent disease transmission and that often attempts to prevent or criminalize diseases has in fact had the opposite effect and led to the lack of early detection, the lack of effective prevention, and has led to greater problems of disease transmission. Dr. Middaugh said because of these reasons, he feels it is very important that this type of legislation not be supported. It would have very little benefit to either attempting to punish individuals who have an intention to attempt to harm another through transmission. Frankly, if a person was attempting to do a person in, the infection of HIV is a very inefficient way to do it because of its low risk of transmission during an individual or several encounters. DR. MIDDAUGH pointed out there were additional housekeeping type problems with this legislation. One is that the legislation discusses an affirmative defense that the defendant knew he/she was infected and informed the other individual, and that consent was given. He said, "Well, we know that many individuals who are engaged in different activities, occasionally use drugs or alcohol and that later recall of what was or wasn't transmitted and what consent or level of knowledge was given, can be quite problematic." He mentioned another problem is the definition of any contact between one or another that might or could result in the transmission of HIV. He said, "Does that mean theoretically could or is likely to; in other words, we know that for hospital workers taking care of persons with AIDS, who have been stuck with a needle after the needle has been first in the person with AIDS, that the risk of the hospital person becoming infected from being stuck is 1 or 2 in 1,000 needle sticks. It's not a highly infectious agent, but circumstances and risk factors are able to be weighed and are being increasingly understood about the likelihood of transmission." DR. MIDDAUGH stated another housekeeping problem with the bill is that under the provision related to "dispenses, delivers, exchanges, sells, or in any manner transfers to another person any nonsterile intravenous or intramuscular drug paraphernalia." He said that a person with diabetes who is HIV infected would have no legal mechanism of disposing of their diabetes syringe and in fact would be committing a criminal act if they turned it over to another person under this legislation. He knew that wasn't intended by the sponsor, but the problem with trying to legislate specifically against one single disease in order to accomplish a different goal he thinks is very counter-productive to the combined efforts of 1) to make sure there are mechanisms to avoid an intentional transmission of any lethal or potentially lethal infection and 2) more importantly, to try to prevent the disease. The final point he wished to make is that we have an effort that's in place to work with individuals who are infected with HIV and enlist their cooperation in identifying all of their contacts. He remarked that what ensued when Magic Johnson announced his HIV status was that thousands of people went and got tested because they were concerned they may have HIV and almost none were infected. In other words, huge numbers of tests of low risk, but worried persons. Alaska is a low prevalence HIV state and our greatest efforts to prevent transmission are to work with all infected persons, identify their contacts who are the most likely themselves to be infected and to enlist and work with them to change their behaviors in order to prevent opportunities for the virus to be transmitted in the future. For the multiplicity of these reasons, he urged the committee to make a difficult decision, but not to pass this bill. Number 923 REPRESENTATIVE ROKEBERG referenced Dr. Middaugh's concerns about intimate contact and asked if kissing would be a method of transmitted the HIV virus? DR. MIDDAUGH responded that it is not thought to be a likely transmission, but it potentially, theoretically could be considered to result if, for instance, there was a cut in one person's mouth and the other person had blood in their mouth from dental work, vigorous brushing of teeth or braces abrading the mouth. He added this is one of the difficulties of attempting to achieve a goal by legislating against the disease that has a complicated scientific epidemiology and mode of transmission. REPRESENTATIVE ROKEBERG asked about the known cases of the disease being transmitted by dental practitioners. DR. MIDDAUGH said no one knows for certain, but in the Kimberly Burgelis tragedy, there is suspicion that that particular dentist may have wilfully infected others to call attention to the plight of the absence of funding and support to deal with the disease, but it is also clear there was inadequate sterilization of the dental instruments in that instance. He commented there was also quite a bit of IV drug abuse in that practice and among many of the individuals who were found to have been infected. Number 1022 REPRESENTATIVE ROBINSON asked Dr. Middaugh if he was aware of any case in Alaska where someone knowingly transmitted HIV? DR. MIDDAUGH replied no. CO-CHAIR TOOHEY said there had been testimony on Representative Ogan's bill, which is basically the same as Senator Taylor's, from a woman who had prosecuted an individual who knowingly had infected others in Juneau. DR. MIDDAUGH said he was unaware of the case. CO-CHAIR TOOHEY offered to provide him with the tape of the committee hearing. Number 1069 REPRESENTATIVE VEZEY said there had been previous testimony to the effect that this legislation was unnecessary because it is already a crime to do the things mentioned in this bill. There has also been testimony in opposition because it may discourage people from being tested for HIV. He felt this was putting into statute what constitutes a convictable offense; however, he did feel this legislation was ahead of the curve in terms of perpetrators and victims. He viewed this bill as simply saying that a person has committed a crime if he/she knowingly infects another person, whether or not you kill the victim and that we as a society can recognize that that form of behavior is not acceptable and can remove such a person from society where innocent victims are exposed. He commented that's what most of the laws do - they remove people from society. He noted there had been discussions about people with tuberculosis and we have tried to address them with great compassion, but we have allowed people with tuberculosis to be arrested and removed from society until the disease can be brought under control. DR. MIDDAUGH said Representative Vezey's points were important ones, but in the case of tuberculosis, that is only done when a person is highly infectious with pulmonary tuberculosis. He added there is an effective drug which totally eliminates the infectiousness and there's an accurate test to both detect the infectiousness as well as detect when the infectiousness goes away. He added it is their hope to soon have some drugs and weapons that will be able to eliminate infectiousness. He said, "The state of being HIV positive is one where not only is it not infectious during the whole period of many years, but unlike tuberculosis where if I had tuberculosis I could give it to you in just our discussion regardless of your behavior. With HIV, just my own behavior in the absence of another criminal offense, such as forced criminal sexual penetration or rape or some form of assault, you would not be at risk of getting HIV regardless of my HIV status and infectiousness because it is not transmitted to you by the air or easily like tuberculosis." He didn't totally disagree with the concepts, but the different behaviors, medically and biologically, of the risk factors and likelihood of transmission make a big difference in this disease versus others and he felt there were (indisc.) consequences of criminalizing a diagnosis in the absence of disease or potential infectiousness or in fact, potential harm. This bill does also not require that a person be infected in order to have the defendant found guilty of a criminal act. Number 1248 REPRESENTATIVE VEZEY said he appreciated Dr. Middaugh's comments, but this bill does not make a crime out of social intercourse. It does establish that it is a crime to engage in sexual intercourse or other form of bodily fluid transmission if a person knows their body fluids may carry a contagion. He said he related this more to rabies than to tuberculosis or a lot of other diseases. He added we would not allow a rabid person to wander in society and the public would insist this person be removed from society. He viewed this as a tool which would allow us to remove from society this infinitesimal small number of persons who are infected because their social behavior is totally unacceptable. DR. MIDDAUGH said he agreed with that intent when the behavior is unacceptable and removal is necessary. He said, "I think the problem that I would view is that the consequences of this legislation could be very negative in terms of being able to both identify and elicit partners from individuals infected and to work with them to identify their contacts and that the likelihood that we would be able to then effectively use the legislation to achieve a goal, which is to try to remove individuals who may be wilfully attempting to infect others, would be a very small benefit compared to the existing legislation that we have which does still provide in our existing legislation for weighing, as you heard before, the likelihood of risk and consequences." The concern with this bill is that it does not do that. CO-CHAIR TOOHEY asked if there were further questions for Dr. Middaugh. Hearing none, she called on Jayne Andreen to testify. Number 1398 JAYNE ANDREEN, Executive Director, Council on Domestic Violence & Sexual Assault, Department of Public Safety, expressed the council's concern with CSSB 91(HES). She said last year one of the strongest concerns the council had related to the potential transmission of the mother to an unborn fetus whether or not she knows that she is an HIV carrier. She pointed out that issue has been dealt with on page 1, line 12. She stated this is a difficult bill and it's difficult to listen to the testimony, but basically the council feels that current offenses covered under this bill can already be charged under state law. She echoed the concern expressed that this legislation would decrease the amount of voluntary testing that would take place for people throughout Alaska. She said it was interesting to note how conversations have a tendency to "mushroom off" when discussing bills, and as the council was discussing this bill, one of the issues that came up was sexual assault victims and the potential risk they face being exposed to HIV. She said that issue had been discussed before the legislature previously and currently there is legislation which gives the victim the opportunity to have the alleged offender tested. The council proposed, for future reference, having some type of aggravator added for sexual offenses when the offender knows he/she is an HIV carrier. Number 1475 REPRESENTATIVE VEZEY said he finally understood that the assumption exists that fewer people will get tested for HIV if they think it might be associated with a crime. According to the legal experts however, it's already a crime to recklessly expose another person to HIV, so he didn't think anything would change in that regard. He added that it kind of defies logic that we know for a medical fact that drugs are available currently that will extend the life of AIDS patients and will reduce symptoms and side effects of the disease. He questioned if people would knowingly forego the possibility of meaningful medical treatment to avoid the possibility of criminal prosecution for something they can already be prosecuted for? It just didn't make any sense to him. MS. ANDREEN said that is one of the council's concerns and there is no way to gauge what the outcome would be. She said, "The concern I think primarily is the way it currently exists, there isn't anything in the statutes that says if you are HIV positive and you have unprotected sex with someone and don't tell them about it, you would be charged with these offenses. It's when it actually is put -- you know, it's under existing assault and attempted murder and murder offenses that a person could be charged at this time. When you have a bill that actually lists out that if you are HIV, this is what can happen to you if you do X, Y, Z is what the concern is, is that it will really focus the attention in for people." Number 1589 SENATOR TAYLOR remarked that of all the people who testified on the Senate side who testified that they feared a reduction in the number of people coming forward to be tested, not one of the people who so testified called one state where this has been criminalized and asked them what happened; Senator Taylor had and no one single state has seen any decline in testing after passing and criminalizing conduct where a person fails to notify their partner. He affirmed that is all that is required - just notify your partner before engaging in sex with them. For those people who testify there will be a "chilling effect" he would like to see their statistics, because he was not able to find any such statistics from the 22 different states he contacted. Number 1643 REPRESENTATIVE ROKEBERG was curious and disturbed by Ms. Andreen's comment regarding an aggravator provision in terms of developing statutes relating to domestic violence victims. He inquired if Ms. Andreen was implying that victims of domestic violence should receive special statutory treatment as opposed to something like this. MS. ANDREEN hoped that wasn't what she had said and thanked Representative Rokeberg for allowing her to clarify. What she had been talking about in cases of sexual assault, sex offenses, was that if the offender knows that he/she is HIV positive, that an aggravator be written into the statute that could be reviewed at the time of sentencing to increase the sentence. REPRESENTATIVE ROKEBERG thought that was what this bill was all about. CO-CHAIR TOOHEY said no, she thought it was Representative Kott's bill last year that addressed the person who knowing had HIV and was convicted of sexual assault. REPRESENTATIVE ROKEBERG asked if that had been enacted? CO-CHAIR TOOHEY responded it was passed. Number 1710 LYNN STIMLER, Executive Director, American Civil Liberties Union of Alaska, said the ACLU opposes CSSB 91(HES). She wanted to point out why the ACLU thinks this legislation is particularly vague and over broad, so that people with common intelligence can't really guess at the meaning of it. She noted that in the statute, intimate contact can mean any contact, because it's sexual penetration or contact in which the body of one person and the body fluid of another in a manner that could result. She said, "Potentially that raises the issue because HIV has been detected in minute amounts in saliva, perspiration and tears -- it raises the issue of whether an athlete - a young high school student whose gotten HIV and was participating in sports and got a bloody nose, would he be theoretically possible and under this statute, I think it would be grounds for prosecution, that the intimate contact provision if an HIV positive high school athletic was playing in a field." She questioned if all HIV people should be quarantined from all athletic activity under this statute? The New England Journal of Medicine in 1987 said it is unrealistic to require proof with absolute certainty that HIV is not transmitted in certain ways, which means because we don't know, this statute is on its face vague. The other issue the ACLU wished to address was that the National Academy of Sciences in 1986 said any admonition to avoid intimate bodily contact and the exchange of bodily fluid can convey at best a vague message; it is not specific enough. The ACLU believes that because the point of testing is for people who don't know about their status, to come in and get information and counseling which can keep them from transmitting this virus, it's very important that testing be as open as possible. The ACLU does not agree with Senator Taylor in that they feel Hepatitis B and tuberculosis are being tested for the very purposes that they are not criminalized. Additionally, this bill shifts the burden of proof. Normally the state of Alaska has to prove every element of a crime which is part of the due process guarantee. In this bill, instead of the state having to prove the defendant did not inform their partner, the defendant has to somehow prove that he did. She further commented she believes CSSB 91(HES) violates privacy and equal protection. Number 1898 RACHEL KING, Board Member, Alaskan AIDS Assistance Association, testified from Anchorage that she had been involved with AIDS education for the past 10 years. She has seen a tremendous amount of fear and loathing around the whole issue of AIDS and HIV. She believes that two big fears - the fear of homosexuality and the fear of IV drug use has kept education from going forward as it should. She stated that education is the best weapon against AIDS and the board's biggest concern with CSSB 91(HES) is that the provision that requires people to know they are infected with HIV will in fact prevent people from wanting to find out their HIV status. Senator Taylor had pointed out that in doing surveys from other states the rate of testing did not decline due to the criminalization of HIV; however, she said that didn't mean that more people wouldn't have gotten tested had those laws not gone into effect. Testing is on the rise everywhere and perhaps it would have continued to go up in those states. CO-CHAIR TOOHEY asked Anne Carpeneti from the Department of Law to present her testimony. Number 1981 ANNE CARPENETI, Assistant Attorney General, Criminal Division, Department of Law, testified there are two reasons the Department of Law opposes CSSB 91(HES). First, the department agrees with Barbara Brink in that this behavior is already covered by other criminal statutes, beginning with attempted murder in the first degree which is an unclassified felony. Secondly, the people who are in risk groups who fear the diagnosis, wouldn't be tested and this would not encourage testing by criminalizing a person who knows that he/she is infected by their behavior, but not criminalizing the behavior of people who don't know. Number 2024 REPRESENTATIVE ROKEBERG commented that Ms. Brink had spoke to the litany of assault statutes and asked if there was anything specifically defined in the assault statutes which addresses the transmission of the HIV virus. MS. CARPENETI responded the statutes do not specify HIV transmission. REPRESENTATIVE ROKEBERG asked how those statues would have any deterring effect on this type of activity if they are not specific? MS. CARPENETI said they are specific in terms in outlawing the egregious behavior that Senator Taylor has described; that being a person intentionally going around having sex with people and transmitting the virus. She added that Alaska's statutes don't specify generally a particular activity, but rather prohibit general activity. Number 2057 REPRESENTATIVE ROKEBERG commented he was not familiar with the state's criminal statutes, but he wondered if Alaska has a felony aggravated assault statute. MS. CARPENETI responded the state has felony assault statutes. Assault in the first, second and third degree are felonies and assault in the fourth degree is a misdemeanor. REPRESENTATIVE ROKEBERG inquired about assault as opposed to battery. MS. CARPENETI said the criminal code revision committee did away with the distinction between battery and assault. REPRESENTATIVE ROKEBERG asked if assault in the state of Alaska is physical contact? MS. CARPENETI said it includes battery. Number 2090 REPRESENTATIVE DAVIS asked if any of the other 20+ states had existing statutes they believed would have covered this type of behavior? MS. CARPENETI said she didn't know, but she would be happy to work with the sponsor to obtain that information. SENATOR TAYLOR commented that every state had the same generic type assault, intentional murder - everything that Alaska has, and every state decided they couldn't keep a prostitute off the street or couldn't convict under those statutes. CO-CHAIR TOOHEY asked if the committee had any further questions. Number 2132 SENATOR TAYLOR asked if we still intend to require consent for sexual acts in the state. Also, could he give his consent to a sexual act with someone if he does not know what they may bring with them? CO-CHAIR TOOHEY speaking as a nurse said any woman or any man in this state or any state that has sex without being protected deserves to get sick. Anyone that has sex in this day and age with an unknown partner, will get some type of disease. SENATOR TAYLOR commented that Co-Chair Toohey had used the word "unknown." He questioned if a wife was consenting to have sex with a husband who finds out that he has HIV but fails to notify her? He didn't think so, because the wife didn't know the full facts. When that husband lies and misleads and does it intentionally, knowing he has the illness, yet chooses to go forward with the act, the wife then becomes a nonconsensual victim. In Senator Taylor's opinion it is very close to rape, but our laws don't cover it. That is why this bill is before the committee. CO-CHAIR TOOHEY asked if there were any further questions. Hearing none, she closed public testimony.
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